Same Sex Marriage, is it Constitutional?
Legal Problems with Civil Unions
A fundamental condition for democracy is equality among all citizens. Equality guarantees that all Americans can participate fully in the larger society. Many marginalized Americans have had to fight long battles to secure the fundamental rights guaranteed by the constitution. As we continue to strive towards being a democratic society we must work to become a more inclusive one. Whether or not gay and lesbian couples should have the right to marry is an issue that has recently come to the forefront of the American consciousness. Oppponents of same sex marriage argue that marriage is meant only for one man and one woman, and therefore same sex marriage cannot be considered a right. In fact, opponents will suggest that it is an egregious error to assume it is a right because marriage would be redefined and opened up for dangerous interpretations. On the other hand, advocates of same-sex marriage say that it is a right, and that any laws forbidding it are discriminatory and unconstitutional. I believe the right to marry should be extended to same-sex couples because it is legally required by our federal constitution.
Typically, opponents of same-sex marriage will argue that same sex marriage is not qualified for legal recognition because it is “insufficient.” They will argue that simply loving someone is not grounds enough to allow them to marry, because we would never allow an adult to marry a child, or a mother to marry her son. This assumes that if America were to allow gay and lesbian couples to marry, we would be redefining marriage to the point that any two people with an affinity for one another could get married. However, allowing a child to marry an adult is an act that would certainly remain illegal considering the fact molestation is considered morally objectionable and highly illegal in most of the western world. Allowing blood relatives to marry would also remain illegal considering the incestuous nature of that union. By suggesting that the love that exists between partners of the same sex is “insufficient” to be able to qualify for recognition as marriage, opponents to gay marriage suggest that there is something deeply wrong and socially incongruent about homosexuality. This type of assumption is incredibly discriminatory. Two consenting adults who form a pact of economic and familial solidarity by entering into marriage will only benefit society. There are thousands of orphaned children around the world who loving same sex couples are perfectly competent to raise together in a family unit. It is society’s obligation to recognize same sex marriage at risk of otherwise implicitly condemning the love and commitment that exists therein—a condemnation that is certainly unconstitutional under the statement that “all men are created equal.”
Aside from gay marriage opponents' aforementioned claim that same-sex relationships are of similar moral standing to romantic relationships between adults & children and between blood relatives, they also claim that homosexuality is damaging to the sanctity of marriage. They will often cite studies that show increased sexual activity and STI’s among homosexuals, and claim that by allowing gay people to marry we would be putting the safety of monogamy and public health at risk. Assuming the previously mentioned studies are not flawed, it is logical to argue here that perhaps there is increased sexual activity among homosexuals because they are simply unable to enter into monogamous relationships quite as seamlessly as heterosexuals. There is simply not as much support for this in the U.S., period. Moreover, it is arguable that t is not constitutional to put an entire group of people at risk of STI’s and mental afflictions simply because they prefer partners of the same sex. These statistics could just as easily be a great physical example of how homosexuality actually becomes detrimental to a person’s health condition when it is placed in the context of an unsupportive and discriminatory society. These health outcomes are not the same across the entire globe in societies where homosexuality is supported. Should homosexuals come to be viewed as equals and be given equal rights and responsibilities, perhaps different behaviors and health outcomes would be observed. Until then, these health and behavior outcomes can justifiably be used to confirm the marginalization of homosexuals in American society as much as they can be used (as gay marriage opponents do) to confirm the damaging nature of homosexual activity.
Lastly, opponents to same-sex marriage often point out a few legal situations where same sex couples can use a lawyer to ensure they are treated as a married couple would be in any legal battle that comes up in the course of a couple's life together. However, they typically fail to address the 1,100 or so legal protections pointed out by the Human Rights Campaign (HRC) that are afforded to married couples. They also fail to recognize the legal dilemmas that blood relatives can present to a same sex partner. For example, the blood relatives of a deceased gay or lesbian individual would always have legal claim to that person’s benefits, even if that person had laid out who their assets would be left to in a will. This just one example of how there is really no comparison when analyzing the legal protections offered in marriage versus the legal protections offered by civil unions. It is also arguable that the very act of having to jump through legal hoops to set up the most basic protections in a civil union puts gay and lesbian couples at an unfair disadvantage.
In sum, it is not only unfair to bar homosexuals from the union of marriage, it is unconstitutional. There is no “insufficiency” present in the union between two partners of the same sex, and this union is not morally or ethically abhorrent. The marginalization of homosexuals is evidenced by high risk sexual behaviors and low mental health outcomes present in the group. At least, this is a conclusion that can be drawn just as easily by the studies opponents chose to use in their arguments against homosexuality. My third and final point is that separate is unequal—and this is no novel thought. The supreme court upheld this notion in the classic Brown v. Board of Education case in 1954--when it was established that having separate schools for African-American students and their white counterparts was unconstitutional. With this precedent in mind, it is obvious that keeping “civil unions” separate from “marriage” is in itself an unequal, unfair, and discriminatory act. A more democratic and just society would be one that offers marriage to all of its citicens, and not just some.